UPTEGRAPH v. SANDALWOOD CIVIC CLUB

Decision Date05 February 2010
Docket NumberNo. 01-07-00764-CV.,01-07-00764-CV.
Citation312 S.W.3d 918
PartiesScott D. UPTEGRAPH Jr. and Kara K. Uptegraph, Appellants, v. SANDALWOOD CIVIC CLUB, Appellee.
CourtTexas Court of Appeals

COPYRIGHT MATERIAL OMITTED

N. Kimberly Hoesl, Doyle, Restrepo, Harvin & Robbins, L.L.P., Stephen H. Lee, Porter & Hedges, L.L.P., Houston, TX, for appellants.

Rodney J. Reynolds, Pillsbury Winthrop Shaw Pittman LLP, Houston, TX, for appellee.

Panel consists of Chief Justice RADACK and Justices SHARP and TAFT.*

OPINION

TIM TAFT, Justice (Retired).

Scott Uptegraph Jr. and Kara K. Uptegraph appeal from a final judgment awarding Sandalwood Civic Club ("Sandalwood CC") injunctive relief to enforce its restrictive covenants, a declaratory judgment affirming its authority to enforce the restrictive covenants, damages pursuant to section 202.004(c) of the Texas Property Code,1 costs, attorney's fees, and pre- and post-judgment interest. In three issues, the Uptegraphs assert that (1) the trial court misinterpreted the Sandalwood subdivision deed restrictions, (2) there is insufficient evidence to support the trial court's findings of facts and conclusion of law that Sandalwood CC acted reasonably in denying the Uptegraphs' fence plans and denying an exception to the deed restriction, and (3) the trial court erred in assessing damages under section 202.004(c) without evidence of actual injury or harm.

We affirm.

Background

In June of 2004, the Uptegraphs bought a lot with house on the corner of Sandalwood Drive and Beechmont Road in the Sandalwood subdivision, located in the Memorial area of the city of Houston, Texas. The Sandalwood subdivision is subject to deed restrictions—enforced by Sandalwood CC—which include specific setback requirements governing the placement of structures on each lot. The recorded plat for the Uptegraph property depicts a 25-foot building setback line along the side of the lot facing Sandalwood Drive and a 10-foot building setback line along the side facing Beechmont Road. The Architectural Control Committee (ACC), which operates independently from Sandalwood CC, governs building approvals within the Sandalwood Subdivision.

After the Uptegraphs purchased their property, they made plans to replace the existing house, which faced Sandalwood Drive, with a new one that would face Beechmont Road. They submitted a set of proposed plans for the new house to the ACC in July 2004. This first set of plans depicted (1) a 15-foot building line along Sandalwood Drive and a 25-foot building line along Beechmont Road, (2) a proposed fence on the Sandalwood Drive side of the lot that enclosed the backyard, but not the motor court, and was further away from Sandalwood Drive than the 25-foot setback line depicted in the recorded plat, and (3) a proposed three-car garage that was set back approximately 16 feet from the Sandalwood Drive side of the lot, and closer to the street than the 25-foot setback line depicted in the recorded plat. The plans were rejected by the ACC because the proposed three-car garage was closer to the street than the 25-foot setback line for the Sandalwood Drive side of the lot. The Uptegraphs' builder subsequently sent a letter to the ACC explaining that he mistakenly thought that, based on the frontage change, the setback line originally applicable to Beechmont Road would become applicable to Sandalwood Drive. In other words, the builder assumed that the setback lines reflected on the plat were relative to the orientation of the house, rather than to a particular street, and so subject to change if the orientation of the house changed.

In October 2004, the Uptegraphs submitted a second set of proposed plans to the ACC. This second set of plans depicted (1) a 25-foot building line along Sandalwood Drive and 10-foot setback line on Beechmont Road, consistent with the building lines depicted in the recorded plat, (2) the same fence enclosing the backyard as in the first plans, further back from the street than the 25-foot setback line depicted on the plat, and (3) a two-car garage built further away from the street than the 25-foot setback line depicted on the plat. The ACC approved these proposed plans on October 19, 2004.

A year later, in late October 2005, an ACC member drove by the Uptegraph lot and saw a wrought iron fence being constructed that appeared to be significantly outside of the setback line, almost to the street. Unbeknownst to the ACC, the Uptegraphs had had a survey drafted earlier that month that depicted a significant change in the location of the previously-approved fence enclosing the back yard. As depicted on the new survey, the fence was to be moved much closer to Sandalwood Drive, enclosing not only the backyard, but the motor court and a large portion of the yard on the Sandalwood Drive side of the property as well, bringing the fence much closer to the street than the 25-foot building line for the Sandalwood Drive side of the lot. The ACC sent a letter to the Uptegraphs on October 23, 2005, advising them to stop construction on the fence because it was closer to the street than the 25-foot setback line applicable to that side of the property and because no plans for this fence in such a location had been approved by the ACC. The Uptegraphs temporarily stopped construction on the fence and submitted a set of plans for the fence under construction to the ACC on October 25, 2005. This set of plans, the third set of plans overall, depicted (1) the originally approved fence enclosing the back yard, (2) a new proposed wrought iron fence between the end of the garage and motor court and the Sandalwood Drive side of the property, much closer to the street than the 25-foot setback line along Sandalwood Drive, (3) a new sidewalk leading from Sandalwood Drive to a gate in the new fence, and (4) a widened driveway. After reviewing the plans, the ACC rejected them. Although the Uptegraphs' builder had been verbally notified of the ACC's rejection of the plans, the Uptegraphs completed the construction of the new fence. On November 2, 2005, the ACC sent a letter to the Uptegraphs' builders, with a copy to the Uptegraphs, explaining that the new fence did not comply with the setback specified by the Sandalwood deed restrictions, that construction began without approval of the revised site plan—which itself was a violation of the deed restrictions, and that a concrete sidewalk and driveway that were not part of the approved plan were now installed. The letter advised submission of revised site plans and concluded by noting that the builders completed the fence after the ACC informed them of the rejection of the plans, and consequently, the Sandalwood CC Board of Directors (the "Board") considered the builder to be in non-compliance and would proceed with further steps to obtain compliance with the deed restrictions.

On November 7, 2005, the Uptegraphs submitted a fourth overall set of plans, the second set pertaining to the newly designed fence and driveway, to the ACC. This set of plans again depicted (1) the originally approved fence enclosing the back yard, (2) the newly constructed wrought iron fence that was much closer to the street than the 25-foot setback line along Sandalwood Drive, (3) a new sidewalk leading from Sandalwood Drive to a gate in the new fence, and (4) a widened driveway; the plans also now included required vegetation-to-concrete ratios. The ACC approved the new concrete portions of the plan, but rejected the portion of the plans that showed the newly constructed fence because it was closer to the street than the 25-foot setback line. The Board voted to enforce the ACC's rejection of the fence, but sought a meeting with the Uptegraphs to try to resolve the issue.

A meeting occurred between representatives from the Board, the ACC, and the Uptegraphs on November 28, 2005, at the Uptegraphs' lot. Mr. Uptegraph shared his concern that the currently permitted configuration—the second set of plans which was approved by the ACC on October 19, 2004—would not allow him to maneuver his SUV into the garage. Alternative fencing arrangements were discussed that would not violate the deed restrictions, but no agreement was reached, and the Board subsequently sent the Uptegraphs a letter, dated December 15, 2005, summarizing the events that had transpired with regard to the fence. The letter pointed out that the ACC had approved the plans submitted by the Uptegraphs for a compliant fence, but the Uptegraphs had proceeded to build a fence that was non-compliant and that had not been approved by the ACC. The letter notified the Uptegraphs that the Board would sue within 30 days of the Uptegraphs' receipt of the letter, if the fence that was closer than 25 feet to Sandalwood Drive was not removed. Mr. Uptegraph responded by requesting a hearing before the Board.

On February 2, 2006, Jack Reynolds, attorney for the Board, sent a letter notifying the Uptegraphs that the hearing had been scheduled for February 15th and that, if the Board ruled against them, the fence would have to be removed no later then March 18, 2005, or a suit would be filed. At the hearing, Mr. Uptegraph stated that he wanted the fence for the safety of his children. After discussing the matter, the Board voted to deny the Uptegraph's appeal of the decision of the ACC and to require the Uptegraphs to remove the portion of the fence that was closer to the street than the setback line.

Reynolds sent a letter to Stephen Lee, counsel for the Uptegraphs, on February 16, 2006, notifying him of the decision reached by the Board. The letter reiterated that the Uptegraphs had until March 18, 2006, to remove the portion of the fence that was closer to the street than the setback line or a suit would be filed seeking injunctive relief, attorney's fees, court costs, and damages of up to $200 per day of the violation. Reynolds further expressed that, if the Uptegraphs wanted to replace the existing...

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